Ex Parte Avtomonov et al

Patent Trial and Appeal Board

Apr 1, 2015

12428256 (P.T.A.B. Apr. 1, 2015)

UNITED STATES PATENT AND TRADEMARK OFFICE
____________________

BEFORE THE PATENT TRIAL AND APPEAL BOARD
____________________

Ex parte BAYER MATERIALSCIENCE AG
____________________

Appeal 2013-005885
Application 12/428,256
Technology Center 1700
____________________

Before FRED E. McKELVEY, RICHARD E. SCHAFER and
BEVERLY A. FRANKLIN, Administrative Patent Judges.

McKELVEY, Administrative Patent Judge.

DECISION ON APPEAL
37 C.F.R. § 41.50

I. Statement of the Case
Bayer MaterialScience AG (“Appellant”), the real party in interest (Brief
(“Br.”), page 4), seeks review under 35 U.S.C. § 134(a) of a rejection dated
22 February 2012 (“Action”).
We have jurisdiction under 35 U.S.C. § 134(a).
The application on appeal was filed in the USPTO on 22 April 2009.
Appellant claims priority of German patent application 102008020437.4,
filed 24 April 2008.

Appeal 2013-005885
Application 12/428,256

2

The application has been published as U.S. Patent Application Publication
2009/0281216 A1 (12 Nov. 2009).
The Examiner relies on the following evidence.

Engelmann U.S. Patent No. 2,027,031 7 Jan. 1936
Eichenauer et al.
“Eichenauer ʼ124”
U.S. Patent No. 4,918,124

17 Apr. 1990

Eichenauer et al.
“Eichenauer ʼ905”
U.S. Patent Application Publication
2004/0132905 A1
1

8 July 2004

We cite the following evidence to show the structural formula of
tris(2,4-ditert-butylphenyl) phosphite.

Chemical Book
http://www.chemicalbook.com/Chemical
ProductProperty_EN_CB5311800.htm
Downloaded
from Internet on
19 March 2015

Appellant does not contest the prior art status of the Examiner’s evidence, all
of which is prior art under 35 U.S.C. § 102(b).
II. Claims on Appeal
Claims 1–10 and 12–23 are on appeal. Br., page 4; Ans., page3.
Claim 1, which we reproduce from the Claim Appendix of the Appeal Brief
(page 37), reads [indentation and bracketed matter added]:

1
The Eichenauer ʼ124 is “equivalent to” WO 2004/050765 A1 (published 17 June
2004). An English-language abstract of the WO is relied upon in the Action at
page 2.

Appeal 2013-005885
Application 12/428,256

3

Claim 1
A composition comprising:

A) an aromatic polycarbonate and/or aromatic polyester
carbonate,

B) a graft polymer obtainable by co-precipitation of a
mixture of at least two graft polymer dispersions B.1 and B.2,

wherein production of the graft polymer component B.1
takes place using at least one redox system as an initiator and

further wherein the production of the graft polymer
component B.2 takes place using at least one persulfate
compound as an initiator,

E)
[2]
at least one phenolic antioxidant, and

F) a neutral phosphorous- and/or sulfur-containing
co-stabilizer,

wherein the phenolic antioxidant E) and the co-stabiliser
F) do not contain acidic functional groups.

III. The Rejection
In the Answer (“Ans.”), the Examiner has maintained a rejection of
claims 1–10 and 12–23 as being unpatentable under 35 U.S.C. § 103(a) over

2
There is no C) or D).

Appeal 2013-005885
Application 12/428,256

4

(1) Eichenauer ʼ124 and (2) Eichenauer ʼ905.
3
Ans., page 3; Action, page 2.
IV. Analysis
A. Scope and Content of Eichenauer ʼ905
The following claim chart describes the scope and content of Eichenauer
ʼ905 vis-à-vis claim 1 on appeal.
Claim Chart
Claim 1 Eichenauer ʼ905
A composition comprising This invention relates to a
thermoplastic molding composition;
¶ 0001
A) an aromatic polycarbonate and/or
aromatic polyester carbonate
at least one thermoplastic resin
selected inter alia from the group
consisting of polycarbonates and
polyester carbonates; ¶ 0015
B) a graft polymer obtainable by
co-precipitation of a mixture of at least
two graft polymer dispersions B.1 and
B.2
a mixture, obtained by co-precipitation
of a plurality of graft polymers,
preferably graft polymers B.1 and B.2;
¶0014
wherein production of the graft
polymer component B.1 takes place
using at least one redox system as an
initiator
the graft copolymer B.1 is prepared
according to a redox initiation; ¶¶ 0002
and 0100–0104
further wherein the production of the
graft polymer component B.2 takes
place using at least one persulfate
compound as an initiator
the preparation of the co-precipitated
graft polymer is prepared using at least
one persulfate compound as the
initiator; ¶¶ 0002 and 0108

3
In the Answer, the Examiner refers to Eichenauer et al. (see, e.g., page 4, line 7)
and Eichenauer et al. ʼ124 (see, e.g., page 5, 4th full paragraph). A reference to
Eichenauer et al. is a reference to Eichenauer ʼ905. Appellant refers to Eichenauer
’905 as Eichenauer 1 and Eichenauer ʼ124 as Eichenauer 2.

Appeal 2013-005885
Application 12/428,256

5

E) at least one phenolic antioxidant,
and
a phenolic antioxidant is not described
by Eichenauer ʼ905, but use of
conventional additives, including
“stabilizers” is mentioned; ¶ 0154
F) a neutral phosphorous-
and/or -sulfur co-stabilizer
the compositions preferably contain
phosphorus-containing flameproofing
agents (¶ 0122), including phosphorus-
containing agents having the formula of
claim 9 (¶¶ 0123, formula (IV) and
0136)
wherein the phenolic antioxidant E)
and the co-stabilizers F) do not contain
acidic functional groups.
the phosphorus compounds of formula
(IV) do not have acidic functional
groups given the R1 and R4 cannot be
hydrogen (¶ 0125). See also ¶ 0189
describing use of triphenyl phosphate.

B. Difference between claim 1 and Eichenauer ʼ905
The difference between the subject matter of claim 1 on appeal and
Eichenauer ʼ905 is that Eichenauer ʼ905 does not describe the use of a phenolic
antioxidant. Ans., page 5; Action, page 3.
C. Level of Skill in the Art
In this case, the level of skill in the art is manifest from the prior art cited by
the Examiner. In re GPAC, 57 F.3d 1573, 1579 (Fed. Cir. 1995).
D. Prima Facie Obviousness
To overcome the difference between the subject matter of claim 1 and
Eichenauer ʼ905, the Examiner turned to Eichenauer ʼ124. Ans., page 5; Action,
page 3.
Eichenauer ʼ124 describes the use of stabilizing mixture of phenolic
antioxidants and sulphur-containing polymers. Abstract, col. 1:5–8.

Appeal 2013-005885
Application 12/428,256

6

One phenolic antioxidant described is octadecyl-3-(3,5-ditert-butyl-4-
hydroxyphenyl) propionate (col. 2:43–44), a phenolic mentioned in claims 10, 16,
17, 19, 21, and 23 on appeal (Ans., pages 5–6), and said to be one of several
preferred Eichenauer ʼ124 phenolic antioxidants (col. 3:42–43).
The antioxidants are said to be suitable for stabilizing various addition
polymers and polycarbonates. Col. 4:12–38.
The sulphur-containing polymer portion of the stabilizer mixture contains
thioalkyl groups. Abstract; col. 1:8; 1:41. The Examiner found that thioalkyl
groups are not “acidic functional groups” within the meaning of “the co-stabiliser
F) . . . [does] not contain acidic functional groups.” See Ans., page 8, citing
Englemann which describes thioalkyl groups as being a “nonacidic substituent”
(page 2, col. 1:40–41).
The Examiner found, based on Eichenauer ʼ124 that one skilled in the art
would have recognized that the Eichenauer ʼ124 stabilizers would be useful in
stabilizing the polymer mixtures of Eichenauer ʼ905. Ans., page 6, first full
paragraph. Based on that finding, the Examiner concluded that it would have been
obvious within the meaning of § 103(a) to use the Eichenauer ʼ124 stabilizers in
combination with the Eichenauer ʼ905 polymers in the manner identified by
claim 1 on appeal.
Further evidence relied upon by the Examiner is a teaching in
Eichenauer ʼ124 that phosphorus compounds can also be used in connection with
the combination of phenolic/sulphur-containing stabilizers. Ans., page 6, second
full paragraph. Col. 2:57–65, including tris-(2,4-di-t-buylphenyl) phosphite
(col. 2:61–62), the formula of which is set out below.

Appeal 2013-005885
Application 12/428,256

7

The Examiner further found that Eichenauer ʼ124 describes dilauryl
thiodipropionate (Ciba-Geigy Irganox PS 800) as a stabilizer. Col. 5:60–61.
The evidence establishes that Appellant is using known stabilizers in an
otherwise known combination of a polycarbonate/graft polymer combination to
achieve a known result, i.e., a stabilized polycarbonate/graft polymer molding
composition.
Use of known materials for their known purpose is evidence of obviousness.
KSR Int’l Co. v. Teleflex, Inc., 550 U.S. 398, 416 (2007); Anderson’s-Black Rock,
Inc. v. Pavement Salvage Co., 396 U.S. 57, 60–62 (1969).
According to Appellant, Eichenauer ʼ905 does not suggest adding the
antioxidants of Eichenauer ʼ124 to the polycarbonate/graft polymer compositions
of Eichenauer ʼ905 and vice-versa. Br., pages 16–17. Appellant’s argument
amounts to no more than a mere disagreement with the Examiner’s obviousness
analysis as set out on pages 2–5 of the Action dated 22 February 2012, where the
Examiner explains the reason why the claimed invention would have been obvious
absent a showing of some unexpected result. In its Appeal Brief, Appellant
makes no attempt to counter the Examiner’s analysis or explain why the Examiner
erred in holding that there was a prima facie case of obviousness. 37 C.F.R.
§ 41.37(c)(1)(iv) (“[t]he arguments shall explain why the examiner erred as to each
ground of rejection contested by appellant.”). The Examiner repeats the analysis
in the Answer. Ans., pages 4–7. No reply brief was filed.
Appellant argues that if Eichenauer ʼ905 and Eichenauer ʼ124 are combined,
one would still not obtain the claimed subject matter. Br., page 17. The argument
is based on a proposition that if the proposed combination is made to make a new

Appeal 2013-005885
Application 12/428,256

8

composition that composition would have acidic groups. Claim 1 requires that
there be no acidic groups. The Examiner, however, correctly points out in the
Answer that the sulphur-containing materials of Eichenauer ʼ124 have terminal
thioalkyl groups. Englemann describes those groups as being non-acidic. Ans.,
page 8 n.1; Englemann, page 2, col. 1:40–41. There is no reply brief answering the
Examiner’s analysis.
With the exception of the argument addressed in the preceding paragraph,
Appellant’s argument is essentially in the form of a mere conclusion disagreeing
with the Examiner. Under the circumstances, we can find no basis for disagreeing
with the Examiner’s holding that the claimed subject matter would have been
prima facie obvious.
E. Unexpected Results
1. Appellant’s Views
Appellant maintains that the “claimed compositions have a good natural
[YI values] color and good hydrolysis resistance [ΔMVR values]. . . .” Br.,
page 17.
Appellant relies on data in Tables 1–4 in the Specification. However, the
Appeal Brief addresses specifically only examples 1–7 of Table 1 and examples
20–23 of Table 4. We will consider only the specific data urged in the Appeal
Brief. See 37 C.F.R. § 41.37(c) (1)(iv) (“any arguments . . . [, e.g., arguments
which might have been made with respect to Tables 2 and 3,] not included in the
appeal brief will be refused consideration by the Board for the purposes of the
present appeal.”).

Appeal 2013-005885
Application 12/428,256

9

According to counsel for Appellant:
The results show clearly and unexpectedly that when the
phenolic antioxidant E) and the co-stabilizer F) do not contain
acidic functional groups, as claimed, the ΔMVR and YI values
are dramatically improved. Nothing in the art predicts that such
a combination would yield the results demonstrated.

Br., page 18, third full paragraph.
2. Examiner’s Findings
The Examiner did not overlook the data. Instead, the Examiner found
that the data (1) is “not conclusive”
4
because it does not compare the closest
prior art and (2) is not commensurate in scope with the breadth of the claims.
Action, page 5; Ans., page 11.
3. Test Data
Test Data from Table 1 is reproduced below.

4
The Examiner’s use in the non-final Action of “not conclusive” in the context of
a proffered unexpected result showing is consistent with precedent. McClain v.
Ortmayer, 141 U.S. 419, 429 (1891) (“We do not care to inquire how far it was
anticipated by the various devices put in evidence, showing the use of a similar
spring for analogous purposes, since we are satisfied that a mere severance of the
double spring does not involve invention, at least in the absence of conclusive
evidence that the single spring performs some new and important function not
performed by it in the prior patent. The evidence upon this point is far from
satisfactory.”) (italics added).

Appeal 2013-005885
Application 12/428,256

10

Table 1

“A” is a linear polycarbonate based on Bisphenol-A and otherwise
unidentified reactants (see Specification, ¶¶ 18 and 117).
The “B” components are specific graft polymers within the scope of
claim 1. Specification, ¶¶ 137 through 144.
“C-1” is a styrene/acrylonitrile polymer. Specification, ¶ 145.
“E-1” is octadecyl-3-(3,5-di-tert-butyl-r-hydroxyphenyl) propionate.
“E-2” is 2,2’-methylenebis(6-cyclohexyl-4-methylphenyl) phosphite,
said to be an acidic phosphite stabilizer used for comparison (Specification,
¶ 150), having the formula:

Appeal 2013-005885
Application 12/428,256

11

Specification, ¶ 102 (formula (VI) on page 27) (the P–O–H group makes the
compound acidic).
“F-1” is tris-(2,4-di-tert-buylphenyl)phosphite (Specification, ¶ 151),
having the formula:

See Chemical Book. The phosphite is non-acidic because it does not have a
P–O–H group.
“G-1” is pentaerythritol tetrastearate. Specification, ¶ 153.
Table 4 is reproduced below.

Appeal 2013-005885
Application 12/428,256

12

Table 4

“D-1” is Bisphenol-A diphenyl diphosphate. Specification, ¶ 147.
“F-2” is dilauryl thiodipropionate (DLTDP). Specification, ¶ 152.
“G-2” is poly(tetrafluoroethylene). Specification, ¶ 154.

Appeal 2013-005885
Application 12/428,256

13

In the Appeal Brief, and in connection with the Table 1 data,
Appellant states that “examples 1–7 contain [a] neutral phenolic antioxidant
E-1, . . . [whereas] examples 8–12 contain [an] equivalent amount of acidic
phenolic antioxidant E-2.” Br., page 18, 4th full paragraph.
4. Lack of a Back-to-Back Comparison
What is apparent from Table 1 is that (1) Examples 1 and 2
(representative of the invention) include elements E-1 and F-1, a
combination of antioxidant E-1 and non-acidic phosphorus compound F-1,
whereas (2) Examples 10 and 11 (representative of compositions have acidic
phosphorus) include element E-2, said to be an acidic phosphorus
compound, but no element E-1 or F-1.
We understand the Examiner’s lack of a back-to-back comparison
analysis to be based on the proposition that comparative Examples 10 and 11
do not include element E-1.
Thus, there is no back-to-back comparison of an acidic phosphorus
material (E-2) with a non-acid phosphorus compound (F-1), both in the
presence of element E-1.
The Examiner’s concern is why element E-1 is not present in
comparison Examples 10 and 11.
No cogent response has been given by Appellant to the Examiner’s
concern.
We have not been directed to any indication of what results might
have been obtained had element E-1 been included in the Example 10 and 11
compositions such that the only difference between Examples 1/2 vis-à-vis

Appeal 2013-005885
Application 12/428,256

14

Examples 10/11 would have been the presence of an acidic versus non-
acidic phosphorus compound.
5. Commensurate in Scope
Appellant maintains “that the results [Tables 1 and 4] are
representative of the claim[ed subject matter].” Br., page 18, 4th full
paragraph, last sentence.
The Examiner observed that “[s]ince appellant only utilizes two
species of antioxidants and stabilizers to represent the present invention in
the comparative data, the data is not seen to commensurate in scope with the
present claims.” Ans., page 12. The claims have no ΔMVR or YI limitation
that would limit the claimed subject to compositions having particular
ΔMVR or YI properties. Likewise, the compositions of the Examples of
Table 1 and Table 4 contain an element C–1, not required by claim 1. The
Examples of Table 4 contain an element D–1, likewise not required by
claim 1. On the record, we cannot tell what properties would be obtained in
compositions not containing C–1 and D–1.
No reply brief was filed addressing the Examiner’s observations.
We therefore have no basis for disagreeing with the Examiner’s
observations.
Appellant’s argument that the properties obtained are unpredictable is
not consistent with the data establishing unexpected results commensurate
with the breadth of the claims.

Appeal 2013-005885
Application 12/428,256

15

F. Decision on Claim 1
For the reasons given, when the prima facie case is weighed against
the test date of Tables 1 and 4, we agree with the Examiner that the strength
of the prior art is entitled to more weight than the test data. On that basis,
we agree with the Examiner that, on this record, the subject matter of claim
1 would have been obvious within the meaning of §103(a).
The decision of the Examiner rejecting claim 1 is therefore affirmed.
G. Other Claims
1. Rule 41.37(c)(1)(iv)
Appellant has separately listed for separate consideration each of the
claims subject to the Examiner’s rejection. See Br., page 18 (last line) to
page 35. However, Appellant relies on similar arguments for many of the
claims. In addition, although each of the claims is listed under a separate
heading, for some of the claims, Appellant merely repeats the claim
limitations and states that the claim limitations are not taught by the applied
art without specifically identifying how the Examiner erred. A statement
which merely points out what a claim recites will not be considered an
argument for separate patentability of the claim. 37 C.F.R. § 41.37(c)(1)(iv),
last sentence.
In general, we find that Appellant has not complied with the
applicable rule relating to arguing the separate patentability of dependent
claims.
The applicable rule provides that:

Appeal 2013-005885
Application 12/428,256

16

the claims may be argued
[1] separately (claims are considered by appellant as
separately patentable),
[2] as a group (all claims subject to the ground of
rejection stand or fall together), or
[3] as a subgroup (a subset of the claims subject to the
ground of rejection stand or fall together).

37 C.F.R. § 41.37(c)(1)(iv) (indentation and bracketed matter added).
Appellant has chosen option [1].
The applicable rule further provides that an appellant “shall explain
why the examiner erred as to each ground of rejection contested by
appellant” and “the basis therefor, with citations of the . . . parts of the
Record relied on.” Id. There is no presumption on appeal that an examiner
erred.
The applicable rule still further provides that “any arguments . . . not
included in the appeal brief will be refused consideration by the Board for
purposes of the . . . appeal.” Id. The rule requirement should be read in
context with the overall prosecution of an application on appeal. A proper
interpretation of the rule is that “any arguments made before an examiner
but not made to the Board are abandoned or waived.”
2. Claim 2
We reproduce Appellant’s argument with respect to claim 2.
For at least the reasons set forth above in Section VII [i.e,
the reasons on page 16:5 through page 18, next-to-last line],
Appellants respectfully disagree with the Examiner’s rejection
over Claim 2 and submit that this claim is separately patentable.

Appeal 2013-005885
Application 12/428,256

17

The cited references fail to provide a teaching or suggestion of
“[a] composition according to claim 1 comprising:
A) 10 to 99 parts by weight of said aromatic
polycarbonate and/or aromatic polyester carbonate,
B) 1 to 50 parts by weight of said graft polymer,
C) 0 to 40 parts by weight of a vinyl (co)polymer
and/or polyalkylene terephthalate,
D) 0 to 50 parts by weight, based on the sum of
components A+B+C, of a phosphorus-containing
flame retardant,
E) 0.005 to 1 parts by weight, based on the sum of
components A+B+C, of said at least one phenolic
antioxidant,
F) 0.01 to 4 parts by weight, based on the sum of
components A+B+C, of a neutral phosphorus-
and/or sulfur-containing co-stabiliser, and
G) 0 to 50 parts by weight, based on the sum of
components A+B+C, of an additive.

The Examiner has failed to provide any evidence that the
compositions described in Eichenauer l [Eichenauer ʼ905] over
Eichenauer 2 [Eichenauer ʼ124] [would have] render[ed the
subject matter of] Claim 2 obvious.

In addition, the superior and unexpected results displayed
in the instant specification are based on instant examples that
fall within the parts by wt of the components, and thus, the
superior and unexpected results based on the above parts by
weight of the components render [the subject matter of]
Claim 2 non-obvious.

For at least the above reasons, Appellants respectfully
submit that the 35 USC 103(a) rejection is improper and
withdrawal of the rejection is respectfully requested.

Appeal 2013-005885
Application 12/428,256

18

Br., page 19 (emphasis added).
A mere disagreement with the Examiner provides us with no reason to
conclude that the Examiner erred.
Appellant contends that the Examiner has failed to provide any
evidence that the compositions described in the combined disclosures of
Eichenauer ʼ905 and Eichenauer ʼ124 would have rendered obvious the
subject matter of claim 2. The Examiner provided evidence—the two
Eichenauer patent documents. Perhaps Appellant meant to argue that
the Examiner erred because of an alleged failure to provide any reason why
the claimed subject would have been obvious.
No specific limitation in claim 2 is held out as being particularly
significant. Rather, Appellant merely states that the prior art does not
describe the subject matter of the claim as a whole.
The record reveals, however, that in the Office Action dated 13 July
2011 (in ¶ 2 on pages 2–3), and the Action from which an appeal was taken
(Action dated 22 February 2012, page 2, ¶ 2 through page 5, ¶ 5), the
Examiner addresses the prior art and sets out reasons for the rejection.
In both actions, the Examiner addresses what is described by the
Eichenauer documents. See, e.g., Action, pages 2–3. Proportions are
discussed in the Action at page 3, third full paragraph. Phenolic stabilizers
of Eichenauer ʼ124 are discussed at page 3, fourth full paragraph. Glass
transition temperatures and particle sizes are discussed at page 2, last
sentence of the third full paragraph. Phosphorus flame retardants are
discussed on page 2, last paragraph. Appellant does not advise us why the

Appeal 2013-005885
Application 12/428,256

19

Examiner’s analysis fails as an adequate reason for combining the teachings
of the prior art.
Appellant mentions “parts by wt of the components” (Br., page 19,
second full paragraph), but fails to address why the Examiner erred in
addressing proportions (Action, page 3, third full paragraph).
While Appellant asks us to consider claim 2 as separately patentable,
Appellant has not otherwise directed us to any argument (apart from the
argument in support of the appeal as to claim 1) addressing why claim 2 is
separately patentable assuming claim 1 is not patentable.
Appellant’s argument with respect to alleged unexpected results were
addressed by the Examiner in connection with claim 1. We also note that
claim 2 does not require any element C, element D, or element G.
Basically, Appellant asks us to independently study the record and see
if we can come up with some basis upon which we might decide that
Appellant should prevail. But, our role is not one of an advocate for an
appellant. Rather, as the Director’s rule requires, Appellant is obligated to
tell us why the Examiner erred. The rule represents the Director’s judgment
on how ex parte appeals to this Board should be handled, a judgment we feel
obligated to respect. The rule counsels against us making independent
studies of the record as an advocate for an appellant and in effect re-starting
the examination process all over after an appeal reaches the Board thereby
ignoring the significant and important role of the Examiner in the
examination process. The Director has imposed on appellants an obligation
of showing error and with respect to claim 2 Appellant has not done so.

Appeal 2013-005885
Application 12/428,256

20

The Examiner clarified the obviousness analysis in the Answer. See,
e.g., the Examiner’s discussion concerning the ability of an ordinary
practitioner to determine optimal ratio of components. See Ans., page 10,
first full paragraph, last sentence, and third full paragraph. However,
Appellant has not filed a reply brief addressing any clarified analysis in the
Answer and therefore we have no basis for disagreeing with any clarified
analysis in the Answer.
For the reasons given, claim 2 falls with claim 1.
3. Remaining claims
For the reasons given in connection with claim 2, the remaining
claims also fall with claim 1.
For completeness, we address some of the dependent claims.
In connection with the glass transition limitation of claim 5, attention
is directed to Eichenauer ʼ124, ¶ 79, mentioned by the Examiner (Ans.,
page 4, second full paragraph), and for which no response was provided by
Appellant.
In connection with the pH limitation of claim 6, Appellant has not
responded to the Examiner’s observations on page 12 (second and third full
paragraphs) of the Answer.
In connection with the particle size limitation of claim 7, attention is
directed to Eichenauer ʼ124, ¶ 80, mentioned by the Examiner (Ans., page 4,
second full paragraph), and for which no response was provided by
Appellant.

Appeal 2013-005885
Application 12/428,256

21

In connection with claim 13, Appellant mentions a rejection based on
the two Eichenauer patent documents and “Seidel.” Br., page 25. We find
no reference to a Seidel prior art document in the Action from which the
appeal was taken or in the Examiner’s Answer. We note that Andreas Seidel
is a named inventor in the application on appeal.
In connection with claim 15 relating to moldings as part of a motor
vehicle, rail vehicle, aircraft, watercraft, etc., attention is directed to page 5
of the Answer and Eichenauer ʼ905, ¶¶ 160–161.
In connection with claim 21, Appellant fails to explain why any
experimental test data are “especially relevant to claim 21” when the test
data does not represent testing commensurate in scope with claim 21.
Br., page 32.
In connection with claim 22, Appellant alleges that the transitional
phrase “consisting of” excludes sulphur-containing polymers described by
Eichenauer ʼ124. Claim 22 calls for a sulphur-containing co-stabilizer.
Eichenauer ʼ124 describes its stabilizer as a synergistic mixture of a phenolic
antioxidant and a sulphur-containing polymer. Col. 1:5–8. A polymer
having sulphur is thus described as a co-stabilizer. “Consisting of” does not
exclude sulphur-containing stabilizing polymers.
V. Decision
Upon consideration of the appeal, and for the reasons given herein, it is
ORDERED that the decision of the Examiner rejecting the claims on
appeal over the prior art is affirmed.

Appeal 2013-005885
Application 12/428,256

22

FURTHER ORDERED that no time period for taking any subsequent
action in connection with this appeal may be extended under 37 C.F.R.
§ 1.136(a)(1)(iv).
AFFIRMED
bar